GSB#0582/98, 1011/99

OPSEU#98C293, 99B8964

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Roleau)

Grievor

• and -

The Crown in Right of Ontario

(Ministry the Environment)

Employer

BEFORE Daniel A. Harris Vice-Chair

FOR THE Don Martin

GRIEVOR Grievance Officier

Ontario Public Service Employees Union

FOR THE Carol Ann Witt, Counsel

EMPLOYER Legal Services Branch

Management Board Secretariat

HEARING May 24, May 25, May 26 and July 31, 2000.

DECISION

The Proceedings

There are two grievances before the Board filed by OPSEU on behalf of the grievor, Stephen Roleau, an Abatement Officer with the Ministry of the Environment. The grievances deal with two different job competitions for the position of Investigations Officer with the Ministry of the Environment. As elaborated upon below, the Union alleges that the interview process was fundamentally flawed in that it undervalued the grievor’s environmental experience and knowledge and overvalued experience and knowledge of investigative techniques. The Union said that the job required both “content” and “process” abilities, yet the competition gave undue weight to investigative process skills, knowledge and ability and too little weight to environmental content skills, knowledge and ability. The grievor was of the view that there was an active animus exhibited by the employer against Abatement Officers who sought to move up to the position of Investigation Officer. The Union did not rest its case on such bad faith but rather upon the disproportionate emphasis described above.

The Union concentrated its efforts on the first job competition. The grievor had walked out of the interview for the second competition because of his views regarding the employer’s bad faith. Accordingly, the remedy sought by the union was with respect to the first grievance.

The Employer said that the grievor lacked the breadth and depth of skill, knowledge and ability necessary to qualify for the position and that the job competition process was a fair assessment of the relevant factors.

The Facts

The grievor first worked for the Ministry of the Environment (MOE) in 1985. He was subsequently employed in a number of different capacities with various employers until he began to work full-time with the MOE in June 1989. At that time he was hired as an Environmental Officer 2 to work in the “Municipal Industrial Strategy for Abatement” Unit of the West Central Region (hereafter MISA).

His employment experience with the Ministry of the Environment is succinctly set out in his resume as follows:

Ministry of the Environment

West Central Region, District Office

119 King Street West, 9th floor

Hamilton, Ontario L8P 4Y7

Position: Environmental Officer 4, Abatement (Acting)

(August 11, 1997 - )

Job Description: Responding to complaints in-order to assess violations of environmental legislation. Insuring that non-compliance issues are corrected in a timely manner. Dealing with the media, public, municipal, and company officials. Issuing tickets and Field Orders, preparing Provincial Officer reports and appearing as a witness in court. Responding after hours to emergencies as part of the MOE’s Emergency Response Program.

Ministry of the Environment

West Central Region, Approvals & Planning

Position: Environmental Officer 3, Approvals & Planning

(March 14, 1997 – August 11, 1997)

Job Description: Assessing Certificates of Approval applications for completeness. Dealing with public, municipal, and District Office concerns. Attending local council/committee meetings. Working with Technical Support personnel to insure ground and surface water concerns are addressed. Preparing certificate conditions to ensure that the activity allowed by the certificate is done in an environmentally sound manner. Also responsible for handling of Application Fees.

Ministry of the Environment

West Central Region, Approvals & Planning Office

Position: Resource Manage 3, Approvals (Acting)

(September 30, 1996 – March 14, 1997)

Job Description: Preparing Certificates of Approval for waste transfer and processing sites. Dealing with public, municipal, and District Office concerns. Attending local council/committee meetings to explain applications and ministry procedures. Negotiating with company officials with regards to Certificate conditions or financial assurance issues. Also responsible for all Environmental Bill of Rights issues for West Central Region.

Ministry of the Environment

West Central Region, District Office

Position: Environmental Officer 3, Abatement

(July 1, 1994 – September 30, 1996)

Job Description: Responding to complaints in-order to assess violations of environmental legislation. Insuring that non-compliance issues are corrected in a timely manner. Dealing with the media, public, municipal, and company officials. Issuing tickets and Field Orders, preparing Provincial Officer reports and appearing as a witness in court. Responding after hours to emergencies as part of the MOE’s Emergency Response Program.

Ministry of the Environment

West Central Region, Regional Inspections

Position: Senior Environmental Officer, Inspections (Acting)

(January 24 – July 31, 1994) & (June 17 – November 4, 1991)

Job Description: Preparing Directors Instructions for the creation of new PCB sites. Updating the PCB Computer Inventory. Dealing with the public, municipal, and company officials. Notifying and advising Regional, District and IEB staff of situations of non-compliance and/or contentious issues. Attending meetings of the PCB Coordinators Committee. Inspection of PCB destruction sites for compliance with C of A’s. Review of new approvals dealing with PCB issues for Approvals Branch.

Ministry of the Environment

West Central Region, Regional Inspections

Position: Environmental Officer 3, Inspections

(January 28, 1991 – June 30, 1994)

Job Description: Inspection of PCB Waste Management sites. Writing of reports assessing compliance with environmental legislation. Preparing Directors Instructions for the transfer, decontamination, and storage of PCBs. Dealing with the media, public, municipal, and company officials. Notifying Senior staff of situations of non-compliance and contentious issues. Testifying in court as an expert witness in regards PCB waste.

Ministry of the Environment

West Central Region

Position: Environmental Officer 2, MISA

(June 6, 1989 – January 28, 1991)

Job Description: Verification inspections, MISA audits, submission of legal samples, review of data submissions, dealing with company officials and their concerns/problems, the writing of letters regarding the MISA program.

The grievor applied for a position as Investigations Officer (hereafter IO) in November 1997. Interviews took place in February 1998. The qualifications for the position were set out on the job posting in the following terms:

Qualifications: Demonstrated experience in environmental or criminal law enforcement, investigative techniques and judicial procedures and relevant legislation. Experience testifying before a court or other judicial body. Demonstrated ability to acquire a knowledge of industrial processes and pollution control. Excellent judgement, analytical, organizational and communication (oral and written) skills. Demonstrated ability to interpret and apply legislation. Ability to acquire computer and photographic skills. Occasional travel throughout Ontario and a valid drivers license is also required.

At the time, of the posting, the grievor was an Abatement Officer (hereafter AO) with the MOE. He reviewed the qualifications set out in the job posting in the context of his experience as an AO. He believed that the IO position was a natural progression from being an AO because the AO was responsible for the initial investigation of environmental offences as part of their duties to obtain compliance with the various environmental statutes. In seeking to ensure compliance, the AO interviews witnesses and gathers other evidence including samples and photographs in order to determine whether there are grounds to conclude that an environmental offence has occurred. Once the evidence leads to that conclusion, the matter would be handed to the IO for further investigation and prosecution. The grievor said that in his capacity as an AO he had prepared occurance reports that detailed his belief that an offence had occurred and the basis of such belief. Those reports would have gone on to the Investigation and Enforcement Branch for assignment to an IO.

The grievor also said that he had given evidence two or three times in court proceedings and was accordingly familiar with judicial proceedings. His most direct courtroom experience was while he worked as an AO from January 1991 to July 1994, in the West Central Region. During that time he was involved with the Management of PCB Waste Management sites. It was in the course of that assignment that he photographed 350 PCB sites and assisted Crown Counsel and the IO in court proceedings in which he was a MOE witness.

In the grievor’s view, the “relevant legislation” referred to in the job posting was the relevant substantive environmental legislation such as the Environmental Protection Act, the Ontario Water Resources Act, the Niagara Escarpment Act and the Pesticides Act, all of which he was familiar with. The only procedural legislation the grievor thought was relevant was the Provincial Offences Act since it was under that Act that tickets were issued for contravention of the substantive legislation. He said that he had issued more than one ticket in his capacity as an AO.

The grievor also testified that in his capacity as an AO he had knowledge of various industrial processes, pollution control, excellent judgment, analytical, organizational and communication skills. He had experience interpreting and applying legislation, as well as computer and photographic skills developed or refined on the job as an AO. He also had a valid driver’s license.

The grievor testified about the job competition process. He said that he was surprised at the questions asked during the interview because only one question related directly to his substantive knowledge of environmental law. That question was time-limited and did not provide him with an opportunity to showcase his knowledge of environmental law. The vast majority of the questions related to investigative techniques such as the issuance of search warrants. He said to his knowledge only one search warrant had been executed in his time as an employee with the MOE.

Having received the highest score, grievor filed a grievance, since no one was selected to fill the advertised position. The competition was re-run as an open competition. The grievor applied to the open competition and found the same overemphasis on investigative procedure at the expense of substantive environmental law content. He was again unsuccessful but did not grieve. It was filled by an outside candidate.

The grievor applied for the IO position again when it was posted as a secondment opportunity. He attended the interview but left when he heard the first question. It was apparent to him that his experience would just be repeated, so it was futile to stay. The second grievance before the Board relates to that competition.

Terry O’Neill testified on behalf of the employer. He has been with the MOE since 1974. At the time of the hearing he was the Programme Manager for West, Central and Eastern Region. He has never been an investigator. He explained that the IO’s report to a co-ordinator who then reports to him. That is, the Investigation and Enforcement Branch is organized centrally, rather than regionally. He described the IO’s as the “eyes and ears of the MOE.” When an alleged violation is uncovered an occurrence report is generated which goes to him. He decides which occurance reports require further action. The co-ordinator then assigns the matter to an IO. The IO proceeds with the investigation including the preparation of the Crown Brief. Some IO’s are trained as prosecutors and may handle the prosecution in Court. Other cases would be refered to the Legal Services Branch for prosecution. There are IOs in all the district offices across the Province.

Mr. O’Neill supervised the job competitions at issue here. He said that he had been directed to limit the competition to employees of the MOE and the Ontario Clean Water Agency, due to the large number of surplus employees, which resulted from the 1996/97 downsizing. There were six applicants for the first competition. One was disqualified as outside the 40 km limit and one dropped out, so the remaining four were interviewed. There were three people on the selection panel. They developed the interview questions using a collection of questions kept on file. He said that the questions were matched to the selection criteria, developed by the Branch and used as the standard. Mr. O'Neill finalized the questions that would be used.

Mr. O’Neill’s general conclusion regarding the grievor was that he had no practical abilities but good potential. He did not feel that the grievor could go into the job as a full-time investigator and perform as required. He said that the panel considered the applications, resumes and results of the interview. It also occurred to him that in the past he had not seen any occurance reports from the grievor, even though he routinely reviews occurrence reports from the field. That is, he relied on his memory of his day to day activities as the Programme Manager and concluded that the grievor did not file enough occurrence reports as an AO. Although he could have done a computer search to determine the number of occurrence reports filed by the grievor, he did not do so.

Mr. O’Neill said that he did not check the grievor’s references or performance evaluations because none of the candidates had done well enough to warrant further enquiry.

The foregoing excerpts from the evidence set out some aspects of the dispute between the parties. The Board has carefully considered all of the testimony of both witnesses and the exhibits filed. It is most convenient to turn now to a compendious consideration of the interview questions.

As is the usual practice, the panel was made up of three individuals, in this instance, Terry O’Neill, Maria Kuszninyk and Dave Bradbury. There were thirteen questions asked. The matrix of the grievor’s scores is as follows.

Ques. #	Potential Score	Sel. 1	Sel.2	Sel.3
1 (a)	5	1	1	1
1 (b)	10	4	3	4
2	18	10	10	15
3	5	5	5	5
4	7	6	6	5
5	10	3	3	3
6	6	4	4	4
7	15	6	6	6
8	20	12	10	8
9	4	2	2	0
10 (a)	4	2	2	1
10 (b)	3	1 ½	2	2
11	3	3	3	3
Total	110	59 ½	57	58

The thrust of the Union’s case is that the questions were overly concerned with the generic process of law enforcement and undervalued knowledge of substantive environmental law. That is, the law that was to be enforced.

The selection criteria used in the job competition were as follows.

SELECTION CRITERIA

INVESTIGATIONS OFFICER

1. Investigative/Environmental Experience

30%

• Demonstrated experience in investigative procedures obtained through the indepth investigation of cases of a criminal or environmental nature which includes seeking out evidence, conducting interviews to extract independent facts, analyzing the evidence and fact to draw conclusions, executing search warrants and testifying in court.

• Demonstrated experience in environmental enforcement including conduction inspections, developing abatement programs, preparing and issuing control documents, participating in public meetings and preparing and filing occurrence reports.

2. Investigative/Environmental Knowledge

20%

• A demonstrated knowledge of the due process of law, the rules of evidence and investigative techniques

• A demonstrated knowledge of safe sampling procedures, pollution control theory, a basic understanding of industrial processes, an ability to make a preliminary assessment of pollution on the environment

3. Legislation

15%

• Ability to interpret and apply legislation including POA, CCC, EPA, OWRA, PA, EAA, EBR, Evidence Act.

4. Litigation

10%

• Previous related experience in preparing informations, summonses and subpoena.

• Demonstrate experience at testifying in court or before any other judicial body.

5. Communications

10%

• Demonstrated ability to prepare accurate and detailed reports and clear correspondence

• Demonstrated ability in oral communications

• Demonstrated ability to communicate effectively with all manner of individuals

6. Judgement

10%

• Ability to use sound judgement in making recommendations on the results of investigations, dealing with individual including regulated parties, the public, other agencies, court officials and ministry staff

7. Other

5%

• Ability to acquire basic computer and photography skills

Mr. O’Neill testified that in each of the seven areas the percentage value was roughly divided between the bulleted subheadings. However, one bulleted point was not necessarily weighted heavier than another. Both witnesses testified as to their views of how the interview questions related to the selection criteria.

Reasons for Decision

The first two questions asked the applicants to describe a significant law enforcement investigation in which they played a prominent part. That question relates to the first of the selection criteria. It also most narrowly fits the first bulleted point, investigative experience, rather than environmental experience, although both areas came into play. The grievor’s answers relied heavily on environmental enforcement rather than investigative procedures. The grievor’s complaint regarding that question was that the time limit of seven minutes was too short. He candidly admitted that the example he picked might not have been the best one and that he foundered in his answer overall. There is no real challenge to the scoring. The questions were worth 5 and 10 marks respectively.

The third question, worth 18 marks, asked the applicant to discuss three investigative techniques, their strengths and weaknesses. Manifestly, this question is directed to the second criterion. Like the first, the second criterion is divided into two bulleted points, investigative knowledge and environmental knowledge. The question asked only addresses the first bullet of criterion 2, investigative knowledge.

The fourth question, worth 5 marks, asked, “What is a voir dire and what is its purpose”. Again, this question tested investigative knowledge expressed as “the rules of evidence” in bullet one of criterion 2.

The fifth question, worth 7 marks, dealt with a claim of solicitor-client privilege with respect to company records seized under a search warrant. Again, that question relates to rules of evidence.

The sixth question reads as follows:

Q.5. Provide a list of steps/actions/events/duties that could occur following the laying of charges, to the time when a penalty is paid in full, in which an investigator is likely to be involved.

The expected answer is a litany of the due process of law. Again, this question, worth 10 marks, relates to the first bullet of the second criterion.

Question seven asks for a definition of a “strict liability offense.” Again, it most closely fits the first bullet of the second criterion. This question is worth 6 marks.

Question eight asks, “What is a Search Plan and what should it include?” Again, it seeks investigative knowledge in the terms expressed in the first bullet of the second criterion. This question is worth 15 marks.

Question nine deals with a hypothetical situation involving contradictory statements from two company employees interviewed regarding “the circumstances of a spill (caused by the company), which is obviously a violation of a MOE regulation.” Clearly the substantive environmental law is not an issue. The expected answer is such a convenient summary of the factors to be considered in assessing contradictory evidence that it is useful to set it out:

• Evaluate in light of other evidence or known facts

• Consistency

• Establish points of similarity

• Impact of external factors e.g. ac to grind, revenge/reward

• Credibility/verbal behaviour

• Experience/apparent familiarity with events, processes, equipment, safety requirements

• Procedures

• Position and/or responsibility level in the company

• Advantage/disadvantage to be gained or lost

• Non-verbal behaviour/body language

• Peer pressure

• Self assurance or intimidated

• What makes sense

• Morality or moral standards

Question nine is worth 20 marks and again deals only with the first bullet of the second criterion.

Question ten is worth 4 marks asks for a definition of the “Judge’s Rules”; that is, the need to caution a witness before taking a statement. Again, the first bullet of the second criterion.

Question eleven asks for an explanation of “a program approval.” Question twelve asks a specific question regarding fines under the Environmental Protection Act and question thirteen asks if a person who has received a Program Approval enjoys any privilege in regard to prosecution. Those questions are worth 4, 3 and 3 marks respectively and all test knowledge of substantive environmental legislation, being criterion three.

Accordingly, viewed objectively, the questions asked addressed bullet one of criterion 2 to a value of 85 marks out of a total possible of 110, or 77%. Fully three-quarters of the marks were allocated to that selection criterion. The grievor scored 47 out of 85, being 55.3%. The evidence establishes, and I so find, that the grievor obtained a passing grade on what is clearly a comprehensive test of his knowledge of generic investigative techniques and the law applicable thereto.

In his testimony Mr. O’Neill reconstructed the distribution of the point scores among the selection criteria. Indeed he said that prior to the hearing, and as part of his preparation for the hearing, he had created a summary document with just such a distribution on it. That document was sought to be introduced as evidence. The Union objected and the objection was upheld because the summary did not meet the elementary evidentiary test of contemporaneous creation to allow its use as an aide memoire. In his evidence he gave a comprehensive account of

how the questions properly related to the weighting set out in the selection criteria. I reject that account as an ex post facto rationalization. I have no doubt that the Union is correct in its assertion that the questions were skewed towards investigative process and did not adequately test the grievor’s knowledge of the substantive environmental law.

The selection criteria set out above were developed from the Position Specification for the IO position. Item 4, of the Position Specification is entitled: “Skills and Knowledge required to perform job at full working level”, and it reads as follows:

4. Skills and knowledge required to perform job at full working level (Indicate mandatory credentials or licences, if applicable)

The duties of this position require an extensive knowledge of investigative techniques, due process of law, the judicial process, rules of evidence and court procedures. A thorough knowledge of the EPA, OWRA, EAA, PA and NEDPA and regulations made thereunder.

A comprehensive understanding of the Provincial Offenses Act, Ontario and Canada Evidence Acts. A working knowledge of Criminal Code of Canada and other related environmental legislation such as the Canadian Environmental Protection Act and the Fisheries Act. A knowledge of the procedures prescribed in the Environmental Bill of Rights. A sound knowledge of the theory and practices related to environmental pollution and pollution control technology. A basic knowledge of industrial processes and operations. Effective communication skills, both orally and written are essential. Performance of these duties also requires keen powers of observation, thoroughness, attention to detail and ability to think logically. Basic computer skills and photography skills are also needed. Incumbent requires a valid drivers license.

JUDGEMENT

Work is performed under general direction of the regional supervisor. Judgement and tact are essential in conducting complex investigations with minimum input from supervisor. As an investigator, and as the prime ministry representative, a very high level of judgement is necessary in dealing with industry, municipalities, lawyers and judges in providing information and guidance in relations to proposed charges. As environmental investigators, judgement is required to implement appropriate legal action. Judgement is also required when collecting evidence/taking statements observing rules of evidence/ preparing and serving legal documents. Sound judgement is also needed when conducting interviews, especially where individuals may be accused and may also be of dubious character.

ACCOUNTABILITY

The position is fully accountable for decisions made with respect to matters requiring expertise in the field of investigations in dealing with cases of non-compliance and in the preparation of prosecution packages. Inappropriate recommendations inadequate technical findings or incomplete documentation of evidence could result in considerable financial losses to the ministry and to other parties and loss of the ministry’s credibility in pursuit of regulatory compliance.

CONTACTS

External

The frequent primary point of contact is with the regulated public. For the purpose of obtaining evidence in an investigation contacts will include officers of corporations, different levels of management, professionals, operational and technical employees and the general public. Regular contacts involving the judiciary are made for the purpose of processing legal administrative documents and attending court. Regular contact is made with experts from the federal government to obtain expert evidence. Occasional contacts are made with the media and professional associations to provide information. Occasional contact is made with officials of out province and federal enforcement agencies to exchange information on enforcement initiatives or participate in joint forces investigations.

Internal

The frequent contacts are made with environmental officers, management, technical and specialist within the ministry for the purpose of reviewing or obtaining evidence. On occasion contact will be made with senior ministry staff to obtain evidence or provide information. Regular contact is made with crown counsel to review cases and regular contact is also made with ministry experts and experts from within the provincial government to obtain expert evidence. Occasional contacts are made with provincial agencies to exchange information on enforcement initiatives and participate on joint force investigations.

As can be seen from both the selection criteria and the Position Specification, the Job Posting itself disproportionately emphasizes the generic investigative aspects of the position. The Job Posting requires a “demonstrated

ability to acquire a knowledge of industrial processes and pollution control”. The Job Specification and purported selection criteria require present knowledge of industrial processes and pollution control. This job selection process was seriously compromised by its failure to value appropriately environmental knowledge. Although the selection criteria were intended by the panel to reflect the description of the job in the Position Specification, the questions formulated to capture those criteria fell far short of that goal.

I am also troubled by Mr. O’Neill’s admission that he took into consideration his impression that the grievor had not been activist enough while acting as an AO. Mr. O’Neill said that as part of his duties occurance reports from AO’s cross his desk. He said in chief that one factor he considered was that as a manager who read occurance reports he wondered why he had not seen any from the grievor. This point was elaborated upon in his cross-examination. He admitted that he did not know the number of occurance reports the grievor might have filed, but an AO should be generating occurance reports and he had not noticed the grievor's. When he was closely questioned on this point, it was established that Mr. O’Neill was only in a position to see the grievor’s occurance reports from August 1997 to January 1998, while the grievor was in the position of acting AO at the Environmental Officer 4 level. By the time of the interview in February 1998 the grievor was back in the Approvals Branch. During the grievor’s previous stint as an AO (July 1994 to September 1996) Mr. O’Neill was not the Programme Manager and was in no position to form any impression at all.

On sum, it is clear that Mr. O’Neill relied on a mere impression that the grievor had not issued many occurance reports and, ironically, he made no effort to actually investigate the facts. He said he did not have to check the number of occurance reports filed by the grievor because he could rely on his own memory. He said that he tended to form an opinion because he sees those who do comprehensive occurance reports; he said, “I do get some sense.” He also said that there might be 13,000 occurrence reports filed in the region annually, but he is only interested in violations that recommend action. He also could have printed out a list of the grievor’s occurance reports but did not do so. Instead he relied on his impression. Further, that impression was not shared with the other panel members.

Another flaw alleged by the Union was the failure of the panel to refer to the grievor’s personnel file. The file was entered as an exhibit in these proceedings. The most recent “Performance Planning and Review” document on file was completed in January 1998, being a few days prior to the IO interviews. It was certainly completed prior to the competition’s selection notification date of February 20, 1998, as set out on exhibit 6, the information form provided to the grievor at the interview. I find that it was available to the selection panel yet they did not refer to it. This Board has on numerous occasions made it clear that it is incumbent upon a selection panel to review these documents. Indeed, the employer shares that view. The “Directives and Guidelines” of the Human Resources Secretariat includes the following requirement to review personnel files:

Personnel File Review and Performance Appraisals

These two assessment tools should not be overlooked as potential sources of information about a candidate’s past performance. The Grievance Settlement Board considers competitions flawed where this information has not been assessed by all selection board members.

What do I do with the information?

Information obtained from these sources can provide leads that should be followed up in reference checks or by interview. They may contain both positive and negative information, such as letters of appreciation or disciplinary action reports. When examining files and appraisals, consider only information that is relevant to the selection criteria for the job being staffed and avoid making unsupported inferences about the candidate.

Had the selection panel checked the grievor’s most recent performance appraisal it would have found the following:

Part 1. Expectations and Standards

For this review period, review and summarize the objectives set out in Part 3 (Future Objectives Planned for Next Period) from previous evaluation if available. The purpose of this discussion and review is to ensure that the standards and expectations of those objectives were clear. (If Part 3 was not completed previously, review performance against requirements of the job specification and/or work plans.)

Stephen was moved into the District Office in July 1994 as part of a staff redistribution. Since that time he has been an environmental officer with normal range of responsibilities for a geographical area. Hat area was the part of Hamilton Wentworth east of Hwy 20 and then changed to Norfolk.

Stephen’s Main responsibilities included inspecting and reporting on sources of pollution, responding to complaints of environmental pollution and infractions, negotiating abatement programs and recommending IEB investigation infractions. Stephen has experience in issuing Field Orders and POA offense notices.

Since this is Stephen’s first performance review, at this office, it is not possible to evaluate performance against previous plans. Stephen’s key accomplishments include:

1. District resources for delivery of Reg 362 which included coordination of the District inspection commitments, providing technical advise maintaining PCB data base

2. Served as District rep for JHHSC and conducted workplace safety inspection

3. Served field order for a site clean up in Stoney Creek

4. Key involvement with a prosecution for sec 14, sec 9 EPA violations on a medium size meat processing plant.

5. Negotiated successful abatement plan at meat processing plant

6. Identified and abated a mysterious odour source in lower Stoney Creek

7. Achieved Part V compliance at plastic processing plant in Simcoe

8. Abated air emission problem at metal processing plant in Simcoe

9. Abated panit overspray problem at a metal coating plant in Stoney Creek

Part 2. Overall Evaluation Of Performance

An overall summary of the employee’s performance. If development is required in certain areas, a plan for achieving this should be included.

Stephen is not bound by rigorous structure. He willingly provided advice and acted as a resource to the District on Reg 362. He regularly accepted tasks outside of geographical area. He willingly moved from duties in Hamilton Wentworth to Haldimand Norfolk. This demonstrates his flexibility and teamwork.

Stephen has effectively communicated with internal and external clients on his area of expertise in Reg 362.

Stephen’s attendance and punctuality do not pose any performance concerns. He often works beyond normal expectations of work hours for no formal reward.

Stephen is willing to do what it takes to provide excellent customer service. He does not “pass-off” but will try to set up a one window contact.

Stephen’s experience and formal education provides a sound foundation for understanding technical issues that may arise both inside and outside the Ministry. This plays out in quick understanding of industrial processes and pollution controls hence a strong ability to solve problems.

Stephen displays a strong commitment to environmental protection.

Attendance and Punctuality:

(Comments with respect to attendance and punctuality during this performance review period)

No Concerns.

The appraisal set out above was a contemporaneous front-line assessment of the grievor, which clearly indicates that he meets the environmental content aspects of the IO position. Indeed, he appears to exceed them. If nothing else it would have dissipated Mr. O’Neill’s impressions as erroneous. The previous evaluation covered a 26-month period ending in April 1993. During that period he was in the PCB Inspection Unit, as an Environmental Officer – Inspections (EO3). His performance evaluations indicated a competence in environmental experience and knowledge, legislation, litigation, communication and judgement as well as a demonstrated ability in computer and photography skills.

There were other concerns raised by the union regarding the flaws in this competition. There was no effort made to check the grievor’s references nor speak to his supervisors. There was also an allegation relating to whether a notice was sent to the grievor confirming receipt of his application. Mr. O’Neill said there was not, even though the Directives and Guidelines require such confirmation. All in all, it is clear to me that there was no genuine attempt to assess the grievor against the selection criteria and the job requirements. The competition was flawed and the Board issues a declaration to that effect.

I am satisfied on the basis of the foregoing that the grievor had the skills and knowledge required to perform the IO job at a full working level. That conclusion is buttressed by the following two practical considerations. First, Mr. O’Neill’s evidence was to the effect that there are gradations of expertise amongst the IO’s. For example, not all IO’s are trained as prosecutors. His evidence was that an entry level IO would carry a caseload of approximately seven cases. The

inference to be drawn from the evidence is that a person starting out as an IO would not necessarily be given the hardest cases. Second, according to the Position Specification and the evidence at the hearing fully 10% of the duties of the IO, are in-house training. The fact is, everyone hired as an IO is required to complete a training programme after being hired.

The Decision

The Board declares that Job Competition # EE-101/IE/97 was fatally flawed. The grievance is allowed. I turn now to the appropriate remedy. As set out above, the grievor obtained a passing grade on a rigorous test of his knowledge of due process and clearly meets the remaining selection criteria as is evident from his performance review and on the job experience. In my view he ought to have been awarded the position. I make this finding without reference to the grievor’s concerns regarding the employer’s motivations in the running of the competition. Accordingly, the grievor is to be awarded the next, comparable IO position. He is also to be fully compensated for his monetary losses, if any. That loss runs from February 20, 1998, as that is the date by which notification of the selection was to

be made. I remain seized to deal with any outstanding or implementation issues.

Dated at Toronto, this 5th day of April, 2001.